Schwinn on the State Secrets Privilege

This article examines the Government’s position on the state secrets privilege in the post-9/11 cases. It argues that the Government’s new position, first under President Bush and now under President Obama, marks an important and disturbing change in how it considers and treats the privilege. In these cases, the Government has sought to dramatically expand the privilege by arguing that the state secrets privilege has roots in constitutional separation-of-powers principles, and not merely in common law evidentiary principles. As a result of this claim, the Government has moved to minimize the roles of the courts in policing the privilege, it has negated private litigants’ interests in their cases against the Government and its partners, and it has argued that courts must completely dismiss those cases in which the Government alone decrees that the very subject matter is a state secret. This new view of the state secrets privilege has gained some traction in the federal courts, even though it lacks support in the history and the precedent of the privilege. Efforts to reform the privilege must take account of the Government’s sweeping new position.